Abstract
If the failure to draw the necessary distinctions between the two system referents conflated conflicts, republicanism is also guilty of ignoring the severing of conflict that this entails. The crux of this is that there occurs a severing of the connection between the broader conflict and what appears as the object of litigation. How the meaning of conflict changes as a consequence will be explored, in turn, along two dimensions, ‘material’ and’ social’.
Because collective action questions the system’s structural logic it is destined to reproduce itself beyond the forms of mediation that can interpret it. (Melucci)
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Notes
According to the formulation of Fischer, 1964. Luhmann relies on this in his account of conflict in 1981, 110
ibid.
Luhmann (1984)
On the relevant UK legislation see Davies & Freedland, 1984, pp, 798, 805-813
Brown, 1990, pp 134-135
Quoted in Brown, 1990, 139
Gusfield, 1963
Notwithstanding the affinity of this politics, in the case Gusfield describes, with specifically conservative concerns for the maintainance of group status.
Brown, 1990, 147
For another see Smith S C, 1991, 329-331
Brown, 1993, 164
Brown, 1990, 142
Sartre, 1976, pp256ff
Willener, 1970, passim and 281-98. Willener argues that at the period of upheaval the emergent (instituant) had only the most tenuous links with the established (institue). Of the two elements that Melucci identifies as characterising the ideology of the movement, the first is ‘the negation of the gap between expectations and reality. The birth of a movement is marked by “moments of madness” when all things seem possible … Ideology thus overcomes the inadequacy of action.’ (1992, 133)
Touraine, 1981, 30
Touraine’s theory invites critique at least as to the definition of social movement it advances. Touraine reserves the term Social movement for too broad a category of action since he uses it to cover the whole field of conflictual collective action.
The theory is susceptible to criticism on the identification of the action of social movements with class struggle. The class nature of social movements is at least questionable. For example the student struggles of the 60s and 70s did not in themselves embody class struggles but rather assumed the role of catalyst through worker-student contacts and alliances intended to mobilise the ‘true’ class actors. Melucci has challenged this aspect of his teacher’s work (1989, 80)
Touraine, 1981, 77
ibid., 81
Although the latter may seem to overstate the case for social movements, it remains crucially important to be able to identify what constitutes a stake adequate to uphold a social movement. This must be more comprehensive than the partial demands advanced at various stages of the conflict. It is a matter of distinguishing (middle range) strategic aims from the stake itself. To give an example, the middle-range targets of the student struggles of the late 60s in France and 70s in Germany, were the authoritarian way universities were run, the lack of student representation in the decision-making bodies, the prospect of unemployment, etc. It would be a mistake to identify these as the stakes of the movement. The student movement also and explicitly challenged the social utilisation of knowledge in the way the normative structures of their society supported it, and in that sense even advanced a counter-model for society. What is in doubt is whether we can call this the new site of class conflict in the way Touraine does, but what is not in doubt is that the stakes of a struggle, if it is to uphold a movement, must be identified at the more comprehensive level.
The point has been elaborated by Melucci (1982)
Touraine, 1981, ch.5, and 1977, pp310-325
Touraine, 1981, 84
Cf Teubner, 1989, 729, for the mode of that emergence in self-reference. Teubner describes how the capacity for collective action emerges when organised collectivities produce actions and then organised action feeds back to produce collective identity. See also his 1988a, 137-138: “It is … communication on its own identity and capacity for action that constitutes the corporate actor or collectivity as a mere semantic artifact, as a linguistically condensed perception of group identity. It is only to the extent that such a corporate actor becomes institutionalized, ie that organizational actions are actually oriented round this self-description, that the corporate actor takes on social reality.” (137-138) This indeed appears to me correct and insightful. But there is an ambivalence in Teubner’s paper that makes his argument occasionally baffling and does not live up to his own presupposition of the radically constructivist nature if the legal person. The ambivalence is relevant to his demarcating the “social substration of the legal person”. Teubner here spends a lot of time trying to find an adequate description of the social reality underlying the legal person, and, having discarded both individuals and groups as such, names it as a communicative process on which, and this is important, the legal reality superimposes itself and reworks to the extent that the two are no longer “identical” (138) in any possible sense. But in what sense is the social substration a communicative process in its own right at all? I think it cannot be. Because the communication underlying the law-albeit organisational or interactional-and “strictly coupled” by it into the law’s own idiom, has its own boundaries around its own topics and own self-descriptions. If that is so, the social substration of the legal person is thus not co-terminous with the legal person, and if it is not, it cannot be a substration. The law’s selectivity is constitutive of its “substration”; the law enacts into being its own “surrogate” environment-including its social “substration” through its own editing. It is thus impossible for the observer to demarcate an area of communication to serve as substratum that precedes what area of social communication the legal institution itself selects as constituting its substratum. The law is always already there before its social substratum. My objection to Teubner then is that in this paper he too goes down the same line of inquiry as the theories he rejects, and that he rejects the theories on the basis that they have found something wrong not that they have gone about looking for it in the wrong way. His methodology here concedes too much and undermines the crux of his substantive argument.
As Sullivan writes in her defence of partiality, ‘[Intermediate organizations not only facilitate individual self-definition and expression but also keep the state from replicating itself by nurturing deviance, diversity and dissent. These functions depend on subgroups’ private status-on their detachment and distance from the all-inclusive State.’ (Sullivan, 1988, 1721)
Melucci, 1992, 137. Melucci explains the interdependence in similar terms to Touraine (note the proximity of the following exposition with Touraine): ‘The meaning of collective action, which is to be found in the system of relations of which the actor is a part, is identified with the particular point of view of the individual actor: the field of social relationships, which is always made up of a network of tensions and oppositions, is restructured according to the position occupied by the actor … The adversary is seen as only having a negative relationship to the totality: the adversary is in fact the very obstacle that prevents general needs from being satisfied, or general goals from being attained … It is, then, always possible to identify in the ideology of a social movement a definition of the social actor who is mobilized, of the adversary against whom the movement must struggle, and of the collective objectives of the struggle.’ (1992, 132)
Melucci, 1989, 29. Melucci provides abundant empirical evidence of such forms of collective identity-generation through expressive activities in (1989)
Eder writes: ‘Theories of social movements assume that the self-description of the collective actor as a social movement places him beyond the institutional framework.’ (1993, 60) But cf. Turner here, who argues that social movements are “inevitably [!] movements about the rights of citizenship: (1986, 92)
Simmel, 1954, pp98-101
Coser, 1956, 38
ibid., 151
Quoted in Coser, 1965, 1
Coser, 1956, 155
ibid., 80
Coser discusses their argument in 1956, 75ff
Note that I am not for a moment suggesting any blanket formula for community, a name that has been given to as diverse groupings as those which share, among others, a paradigm (Kuhn), a nomos (Cover), a culture, or a world-view (Goodman). My argument pivots on the’ sharing’ and allows the ‘what’ to be designated reflexively by those whose sharing of it appears significant and adequate to their sense of togetherness.
Virally, e.g., describes law as a force of collective integration in 1960, 21 Off. For an overview of theories and debates on the integrative function of law see Cotterrell, 1984, 73-103
347 U.S. 383(1954)
It is problematical for the republicans in that the period of popular mobilisation did not, as they would have it, feed the new understanding of equality into law. And Ackerman needs to rely on a previous constitutional moment to justify the reasoning in the case, not the civil rights moment that had not yet occurred.
For Ackerman only the first of the moments, the ‘Reconstruction’, is a full-blown constitutional one. The second is a compelling synthesis of the Reconstruction moment with the New Deal moment of activist government (1991, pp 140-141). It is thus a prime example of what Ackerman calls ‘intergenerational synthesis’ by the Court. The third moment is a minor constitutional one because it does not fulfill all the necessary criteria Ackerman identifies. The civil rights movement is more or less a late expression of the New Deal constitutional moment. What matters for present purposes however is that there exists in Ackerman’s account an intimate feedback, a dialectic, between legal understanding and direct political popular mobilisation. And that the political voices calling for inclusion and equality carried into law and forced a revision of fundamental legal understandings.
1986, 387ff
‘Jurisgeneration’ for Cover is the process of giving birth to meaning within community but the community he is talking about is bound to a normative universe (a nomos) that is discrete, insular and specific. Cover makes this point over and over again. ‘The nomos that I have described requires no state.’ (11) His community is not a part of but an alternative to the state. (Cover, 1983) For more on Cover, see chapter sixteen.
Michelman, 1988, 1513-1514
For the connection of Michelman’s theory with Habermas’s see part I
Michelman, 1988, 1529
ibid.
‘Fear of the Negro … is a means of keeping the status system intact, of rallying all members of the white group around its standards.’ Because if the Negro is seen as dangerous, ‘those in the white group who befriend him can be effectively characterized as “renegades” endangering the very existence of the white group.’ (Coser, 1954, p 109). For the facets of fear and the function in maintaining the white group’s identity, see indicatively, Mydral (1944). Tannenbaum describes it thus: ‘The South gives indications of being afraid of the Negro. I do not mean physical fear. It is not a matter of cowardice or bravery; it is something deeper and more fundamental. It is fear of losing grip upon the world.’ (Tannenbaum, 1924, pp 8-9)
Historically there is abundant evidence of this danger. And the republicans can celebrate the Constitutional moment only at the expense of downplaying the often successful resistance ‘within’ the new community. Even the most widely celebrated republican moment of ‘Reconstruction’ is conceived as a birth of a new community only by downplaying the successful white Southern resistance to the practices of Reconstruction that profoundly altered not only the nature of the objectives of the ‘Radical Republicans’ (Ackerman’s critical constitutional vanguard) but also the depth of implementation and ultimately the constitutional form of the ensuing era. (On this see Foner E (1988)). As Simon stresses, ‘[a]t a minimum the Redeemers must be seen as achieving a special status for the South as “a distinct society” within the new constitutional order of the Union … The same forces that galvanized the Reconstruction Republicans also mobilized couter-revolutionary forces in both sections of the country that sought to find ways of channeling and eventually dissipating the Reconstruction effort.’(1992, 510, 512)
I owe this point to Maurice Glasman. It relates to the argument that McIntyre makes about ‘epistemological crises’ that come about when narratives can no longer rationalise the unexpected. (Mclntyre, 1977).
See Christodoulidis, 1994, 11-12
Michelman, 1986, 32
Sherry, 1986, 615
Michelman, 1986, 4
ibid.
In discussing the ‘emancipatory activity of Black Americans,’ Michelman asks: ‘Does anybody doubt that the judicial agents of the challengers’ accumulating citizenship drew on interpretive possibilities that the challengers’own activity was helping to create?’ (1988, 1527)
Piccioto, 1979, 171-172
Dworkin, 1986, 190
This is not strikingly different from the old position in favour of common law that argues that judges express the mores of the community. On this see Lindsay Farmer’s excellent (1993)
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Christodoulidis, E.A. (1998). Conflict Severed. In: Law and Reflexive Politics. Law and Philosophy Library, vol 35. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-3967-0_13
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